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“I don’t even think of retaliation as immoral, at this point.”

2:50 pm in Uncategorized by MSPB Watch

Can you be an effective advocate for whistleblowers’ rights if you don’t believe retaliation is immoral?

Readers of this website know that I am not a fan of Tom Devine, Legal Director at the Government Accountability Project. I believe that he possesses/possessed far too much influence in whistleblower circles, given that (a) at bottom he does not believe in the rule of law (by his own admission to me), and (b) he does not believe that retaliation is immoral, by his own words to the public just last month. Take a look:

“I don’t even think of retaliation as immoral, at this point.” -Tom Devine, Legal Director at the Government Accountability Project, speaking at Harvard Law School in October 2013 at a program organized by Ralph Nader

Fuller video/context for fact-checkers here.

I’m not going to belabor the point. I’m just going to put this out there: would a so-called abolitionist have been taken seriously in the 1800′s if he didn’t see slavery as an immoral institution? Would a suffragist be taken seriously at the turn of the 20th century if she didn’t see disenfranchisement as immoral? Would a civil rights activist in the 1960′s be taken seriously if he didn’t see segregation as immoral?

Is retaliation for speaking the truth a lesser form of struggle than the above?

Were slavery, disenfranchisement, and segregation not also defended on naturalist, universal, and timeless grounds before this fallacy was exposed for the power-entrenching excuse that it is?

If one doesn’t believe in the rule of law or the immorality of retaliation (or injustice and denial of due process), and one holds a large degree of influence over the development of whistleblower rights for 30+ years, what is the likely degree of health and vitality of those rights, 30 years out?

Despite what my detractors say, my objections with Devine are rooted in the fundamental difference that retaliation is not a natural part of life that we must resign ourselves to and accept. It’s a social norm that can be regulated and abolished. And it is this difference that colors my ethics and motives, as well as his.

The Transparency Establishment’s Echo Chamber

12:16 pm in Uncategorized by MSPB Watch

The Office of Special Counsel was not, in fact, brought up in the FOIA Summit. OSC’s role in FOIA oversight is discussed here, here, and here. Asking why it wasn’t brought up is the same question as why some of the groups involved don’t seek additional funding for OSC, or inquire about its performance or the Merit Systems Protection Board’s performance.

It’s ironic that for all the discussions and plans to add processes and councils and such, an agency with the decades-old ability to strike fear into the hearts of bureaucrats is being overlooked by the transparency establishment. After all, FOIA law requires agencies to reveal their own dirty laundry themselves, and the element of blind trust in government is baked into that law.

I guess acknowledging that that trust is regularly abused is beyond the scope of the FOIA summit.

GAP’s Whistleblower Whiplash

8:26 pm in Uncategorized by MSPB Watch

Two developments in the whistleblower world caught the Government Accountability Project speaking out of both sides of its mouth today.

Whistle Blower puppet

GAP’s Tom Devine is inconsistent on whistle blowers.

Here’s GAP’s Legal Director, Tom Devine, on news that the Federal Circuit dealt a serious blow today to national security employees’ (and possibly all federal employees’) civil service protections:

Last year Congress unanimously passed the Whistleblower Protection Enhancement Act (“WPEA”) due to hostile Federal Circuit activism creating judicial loopholes that gutted statutory free speech rights. Apparently the Federal Circuit did not get it. This time the court created a loophole to remove the civil service rule of law from virtually the entire federal workforce. It erased all federal laws that shield the two million federal employee workforce from becoming a national security spoils system.

And

After Conyers, federal employees will have two rights left: be national security ‘yes people,’ or leave. A bureaucracy where it is only legally safe to be a national security ‘yes man’ is a clear and present danger to freedom for all Americans.

Of course, courts do not issue rulings destroying 100+ years of civil service protections willy-nilly. Someone has to argue for that position. Conspicuously missing from GAP’s myopic condemnation is any mention of the driver and originator of this decision: the Obama Administration, as well as Acting OPM Director Elaine Kaplan, a former Special Counsel and recipient of a GAP-sponsored award.

Turning to the second development, here’s the very same Tom Devine defending the White House on charges that the president misspoke/misled/lied to the public when he said that his executive order (PPD-19) would have given Edward Snowden a viable channel to blow the whistle. The article ably lays out all the different interpretations and positions on this issue. For my purposes, however, it’s sufficient to quote the end:

“There is no substitute for codified rights,” said GAP’s Devine. “But to be fair, the president is doing what he can to sweep in contractors” under the October directive. Devine’s discussions with White House aides indicate they believe the White House has the authority to act alone, he said, perhaps by using “expansive definitions of government employee.”

Sometime between the time Obama signed the October order and the stripping of contractor protections in the defense bill, Devine said, the issue fell off the White House radar.

So there you have it folks. When it comes to a conscious, relentless effort to eviscerate decades-long civil service protections, the Obama Administration is nowhere to be mentioned in Devine’s indignant quotes. But when the president makes a comment that perks the ears of whistleblower advocates across town, Devine is there, ready to offer innocuous sounding excuses on his behalf.

Here’s a question to my fellow whistleblowers: does this conduct do justice to your sacrifices?

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De-Muddying the Waters: GAP’s Compromised Role as Lobbyists, Not Lawyers

5:54 pm in Uncategorized by MSPB Watch

It has become an entrenched trope, a go-to defense, for the Government Accountability Project and its defenders to claim that GAP “can’t help everybody,” or “they helped me for free,” when its performance as an accountability organization comes under questioning. This line of deflection–this conscious blurring of the line between its functions as lawyers and lobbyists–is so powerful that it survived two different radio shows unquestioned. Until now.

Recently, GAP’s Tom Devine was on the Peter B. Collins show with his client, TSA Whistleblower Robert MacLean, who won a victory in federal court (the same show where Devine and his client displayed poor judgment by adopting the tactics of bureaucratic bullies, and not the first time for Devine). Toward the end of the show, Collins asked Devine to respond to some critiques by DOE Whistleblower Joe Carson:

Peter B. Collins (38:13):

Tom, I’d also like you to react to some information and commentary that I’ve received from Joe Carson. And I- I can’t imagine that you’ve never heard of Joe Carson. He is a profilic writer and he has contacted many agencies and congressional committees and the White House over the years. He is- he describes himself as a successful whistleblower in the Department of Energy, where he is a nuclear engineer, in Tennessee, and he’s been very active on these issues. And his central focus is on the Office of Special Counsel, and the role that it has under the 1978 in protecting whistleblowers.

And he contends that there has been what he calls a “broken covenant” – this longtime failure to enforce these rules, and in particular for the OSC, to exercise its appropriate role in protecting whistleblowers. And he starts with the contention that most federal employees don’t even know about their rights under the Office of Special Counsel. Could you- I’m sure you heard from him, so could you tell me your viewpoint on the issues that he raises?

Here was Devine’s reply (39:29):

I hear from Joe all the time, relentless, and we actually represented him, in some of his earlier victories under whistleblower rights in the Department of Energy. So I’m very familiar with his perspective.

And there have been extensive periods of time where I’ve completely agreed with him about the Office of Special Counsel and in fact our organization tried to get the institution abolished, we thought it was a trojan horse for whistleblowers. I don’t think that he is really fair at giving credit where it was due. Some of the special counsels who really did stick their necks out and worked hard and get effective results protecting whistleblowers.

Probably the area where we’ve really agreed to disagree the most is- Joe has been attacking me for a few years- it used to be a big [unintelligible]- he’s been attacking because I disagree with him that we should sort of delegate the policies on whistleblower protection to the White House Office of Legal Counsel. He thinks that this would straighten things out for whistleblowers, and I’ve just been dubious because it’s the same office that was behind the memos on drones and on legalizing torture and everytime we’ve learned about an opinion they’ve had on whistleblowers it’s been to shrink or abolish whistleblowers rights. So we’ve agreed to disagree on that particular issue.

The Broken Covenant Dodge

Collins (41:00):

And do you share his characterization about what he calls the “broken covenant” that those who occupy the OSC have failed to operate within the law, and you, know, to properly report on cases of the PPP – what is that – the prohibited personnel practices?

Devine (41:22):

Yeah, that’s all the merit system violations. I think you just can’t generalize, Peter. There’s been some of the special counsels who not only broke the covenant, they tried to destroy it. There was a Special Counsel in the eighties named Alex Kozinski who actually taught courses to federal managers how to fire whistleblowers without getting caught by his own investigators. He would tutor them in his office, how to write up the terminations to fire whistleblowers.

Collins:

Is that the Kozinski who’s now a federal judge?

Devine:

He is the chief- the chief judge of the Ninth Circuit Court of Appeals, and if he hadn’t got caught by whistleblowers from the Office of Special Counsel, he’d be on the Supreme Court right now. There were 43 votes against his Ninth Circuit circuit confirmation, because of how he broke that covenant, betraying the trust that he had as a protector of whistleblowers.

Scott Bloch, the Special Counsel under the Bush Administration, his sentencing for whether or not he’d go to jail was postponed yesterday because the evidence had been doctored about why he shouldn’t go to jail, and he was such a horrible Special Counsel that he had to resign after the FBI raided his office, and he was covering up the evidence they were seeking. There have been some people who just- they were magnets for whistleblowers by their own staff at the whistleblower protection agency.

But it’s not fair to generalize. There are some other folks who really made a difference and Joe and other members of the community, they’re observers a lot of times of what happens. I have to deliver results for people whose professional lives are at stake. And I can tell you that, right now, the Office of Special Counsel is working their tails off, and they’re getting results for whistleblowers, and a lot of- their leadership is composed of former free speech activists and employee rights activists, their whole careers. It’s not fair to say that one institution is always good or always bad, that’s just not the way life operates. And right now, we’ve gone from warning whistleblowers not to sabotage themselves by filing complaints with the Office of Special Counsel. We’ve gone from that perspective five years ago to the Office of Special Counsel being the first option to help whistleblowers, and it’s completely just dependent on the results.

Cute. Notice, however, that Devine never really answered the specific question posed by Collins: “do you share his characterization about what he calls the ‘broken covenant’ that those who occupy the OSC have failed to operate within the law, and to properly report on cases of the PPP?”

Instead, Devine claims that “you just can’t generalize” and proceeds to distract with titillating tales of political intrigue (while attempting co-opt the broken covenant term, if not dismissing this author and others as mere observers who aren’t affected by OSC’s failures and who don’t need to deliver results. And hiding once again behind his role as a lawyer to defend his actions as a lobbyist.)

The focus on “results,” however, proves too much. What’s missing in Devine’s answer is any discussion of the law (as in “those who occupy the OSC have failed to operate within the law“).

Here are some hard facts regarding just one prong of Carson’s “broken covenant” theory:

  • Carson contends that federal employees do not have an effective way to bring forward concerns (i.e. ”protected disclosures”), particularly classified ones or ones that are otherwise prohibited from public disclosure, despite OSC being the primary mechanism for this, by virtue of the 1978 Civil Service Reform Act.
  • Since 1989, OSC has received 28 disclosures from whistleblowers within the FBI, CIA, NSA, DIA, and NGIA.
    • Of those, it referred none to the agency heads for internal investigations.
  • Since 1989, OSC has received 11,174 disclosures from other executive branch agencies, over which it has whistleblower protection jurisdiction.
    • Of those, 81 were disclosures that were prohibited by law to make publicly (i.e. to the media).
    • Of these 81 prohibited/classified disclosures, were referred to the relevant agencies for internal investigations.
    • Of these 81, only one involved foreign intelligence or counterintelligence information, requiring mandatory referral to the intelligence committees in Congress and the National Security Advisor.

Think about it: since 1989, of the thousands of disclosures OSC has received, only one merited confidential referral to the national security apparatus in Congress and the White House. This is so despite 9/11, the Iraq War lies, illegal torture, warrantless wiretapping, the drone strikes, and, of course, Sibel Edmonds’ explosive allegations. OSC’s failure to be a viable classified disclosure channel has cut across all tenures, all special counsels, and all administrations, including the special counsels over whom Devine weeps. So you can, in fact, generalize, contrary to Devine’s non-answer.

Rebuttal

In the second half of the show, Collins asked Carson and me to come on and provide a reaction to Devine’s interview. You can hear how pervasive the GAP-as-lawyers-not-lobbyists defense is when Collins, acting as devil’s advocate, pushed back against our arguments that GAP has cornered the market as a watchdog organization, by arguing that GAP cannot provide representation to all who seek its help. This is true. However, the critique against GAP is not that they aren’t omnipresent as counselors, but that they fail to use their clout and power as lobbyists responsibly.

For example, when Tom Devine’s role as a lobbyist is criticized, his defenders often downplay his clout (if not invoke their gratitude for his legal assistance – see?). But on Collins’ show, Devine himself proclaimed (at 37:45, first half) that MacLean helped give the entire national security community rights by lobbying Devine, who then got the President to issue PPD 19 (which bizarrely omitted the Office of Special Counsel). Devine cannot be both that powerful and a shrinking violet.

In this interview, Devine both accurately trumpeted his prominent role in whistleblower issues as well as showed how easily he weaves between his roles as lawyer and lobbyist. The two are not the same, and at times may conflict with one another. A discerning whistleblower would be wise to tell the difference.

1978 to 2012: Transparency and Congressional Deliberation of Whistleblower Laws through the Years

12:17 pm in Uncategorized by MSPB Watch

An array of tin whistles

A look at whistleblower laws of recent decades

In 1978, Congress debated the Civil Service Reform Act extensively. It was a landmark, once-in-a-century effort. Naturally, there would be a lot of coverage. Deliberations in the Senate took 12 days, deliberations in the House took 13 days, and the House-Senate conference took place over at least 6 days, according to records recently discovered in the Library of Congress. Here are some of the mark-up sessions and other documents from those deliberations:

By contrast, research into the mark up of the Whistleblower Protection Act of 1989 revealed only one day’s worth of deliberations, and the Senate’s mark up of the Whistleblower Protection Enhancement Act of 2011/12 took only five minutes.

Contrast this give-and-take in 1978 over the role of the Special Counsel, as just one facet of law, versus the entirety of the discussion over the WPEA in the Senate, 33 years later.

June 1978:

Sen. Chiles offered that

My feeling is if you put a Special Counsel in and he is appointed by the President, you know, we are really having sort of two groups that are supposed to be doing the same thing, and that is protecting the workers. You have the Merit Board, and the Merit Board is a bipartisan board with staggered terms, and it is certainly supposed to be operating in the best interests and for the best results of protecting employees. And then you turn around and appoint a Special Counsel by the President, and then you get into the whole thing of how do you get rid of him. Is he for cause? Who can initiate?

He also raised the point that

If you have a Special Counsel, and I am concerned with what we did with the Special Prosecutor in this regard, we are starting to create individuals or posts with tremendous power but no accountability  You let the President nominate him, but then he can’t be removed except for cause. He is really sort of accountable to no one once he gets in that job.

Senator Jacob Javits (R-N.Y.) responded to Sen. Chiles’ concerns and said that

[A] Special Counsel appointed by the commission would not have the standing that a Special Counsel appointed by the President would. . . . I would hope that we could take a Presidential appointee subject to Senate confirmation, give him the necessary stature and then give him the necessary protection so then he is really acting as the independent prosecutor. . . [unintelligible] making him a Special Counsel is that we don’t necessarily want them to work together. We are a little bit concerned that the Merit Systems Protection Board may, like so many other boards, get impregnated with the views and the attitudes, et cetera, of the agency which it serves. Therefore, as a check and balance, especially for whistleblowers, we want to have somebody out there who can initiate a prosecution.

Sen. Chiles responded that

Now what happens, every time that we decide we can’t trust one group and so we are going to add another check, I think really what we do is we remove a little further from the people the ability to judge and assess responsibilities and to pinpoint that responsibility, and we diffuse it. But we also make it where government can’t work because they start working at loggerheads.

So I would rather have the responsibility be on the appointments of the Merit Protection Board, that board be confirmed by the Senate, make that board of some stature, make them responsible and allow them to appoint the Special Prosecutor or the Special Counsel, and have that chain of responsibility. I think when you start deviating from that, before long we are going to need somebody to check on the Special Counsel. Then we will have to give some independence to that person because we are afraid the Special Counsel, by virtue of his term or the fact he is only removed for cause — that is just looking at it philosophically.

October 2011:

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Letter from Loretto: John Kiriakou Blows the Whistle on Compromised Washington Watchdogs

12:45 pm in Uncategorized by MSPB Watch

Now this is tricky, because these groups helped him navigate the treacherous waters of the mainstream media, with mixed results, during his prosecution and through his send-off to prison. So for John Kiriakou to say the following about groups like the Project on Government Oversight (and implicitly the Government Accountability Project), when they expect loyalty in return (Washington being a transactional town and all), is nothing short of astounding:

No one knows this better than John Kiriakou, the CIA agent who reported to federal prison two weeks ago for blowing the whistle on the agency’s use of torture. During an interview at an Arlington, Va., coffee shop, Kiriakou said the time has come for Washington watchdog groups—organizations like Public Citizen, Project on Government Oversight, Citizens for Responsibility and Ethics in Washington, and others—to admit that President Obama hasn’t come close to making good on his promise to make government more transparent and accountable.

“Dan Ellsberg. He called me again last night,” said Kiriakou, referring to the man who in 1971 leaked the Pentagon Papers and opened the world’s eyes to the United States’ long involvement in Vietnam. “We talk about this all the time. He keeps asking me, ‘Where is the outrage? If this were a Republican administration, people would be in the streets, right? We would be marching in the streets. But people cut Obama a break to the point of irrationality.’ ”

This comes just a few days after this author sent Mr. Kiriakou a letter* urging him to consider who should speak on his behalf. Where it gets complicated is that GAP currently manages his legal defense fund, which is helping to support his family. That should continue unabated, regardless what insights Mr. Kiriakou shares with the world that prove uncomfortable for GAP and its cohorts.

*This author does not take any credit for this development. From his perspective, it is just a welcome coincidence.

Closing the Loop on NGO Accountability

6:35 am in Uncategorized by MSPB Watch

First, some excerpts from Sibel Edmonds’ highly-recommended Classified Woman:

Chapter 9

Good, affordable attorneys willing to take on the FBI and Justice Department are a rarity in Washington, DC. As far as government watchdog and whistleblower organizations go, none of them call you back unless you happen to be famous. (It took me years to understand the game: high profile cases are cash cows for many of these groups, who use the funds they raise to pay the salaries of their staffs, none of whom are whistleblowers.

Chapter 14

Meanwhile, I called and e-mailed any organization I could find that dealt with whistleblowers and First Amendment cases, those who claimed to be fighting excessive secrecy and executive branch abuses of power. I needed their support and expertise, yet in spite of the fact that my case embodied all these civil liberties, not a single organization lifted a finger to contact me, call me back, or offer any assistance. (While it was a hard blow and a tough pill to swallow at the time, this experience helped me a great deal a few years later, when I formed my own coalition, network and organization to deal with and help government whistleblowers.)

Chapter 15

Soon I started to receive offers of support and solidarity from various whistleblower, government watchdog and public interest nonprofit organizations, something I found bitterly amusing. Where were these groups when I most needed them? Strangely enough, I was helped, in a way, by seeing how they operate. In time, this understanding would become a catalyst for forming my own organization for whistleblowers.

Chapter 16

At the end of my speech, noting their enthusiastic applause, I came to another realization. What I was doing here was preaching to the choir. These people were already informed; all were active in the fight. The question I was struggling to find an answer to was, how do I reach other who are not informed? How do we get through to those who readily have accepted the despotism being marketed to them as security?

During the Sam Adams Award conference, a dark-haired petite woman in her thirties had walked over and introduced herself…. Ann wanted to know if I were planning to appeal the case, because if so, the ACLU would be interested in helping. This made me snap at her, rather rudely. I told her all about my past experience begging for their help-how they had made me wait for months for an answer, only to turn me down. None of their attorneys were interested. Then I pointed my finger and said, “I’m disgusted with all these organizations who preach one thing and then do another-who only approach people and help them if those people are surrounded by publicity.”

Later that day she even tried again, to which I nastily replied, “These whistleblowers all need legal help, and they won’t welcome an organization that has not extended help to them.”

My efforts to expose and reform the government watchdog NGOs as exploitative of whistleblowers have run aground. Not because I failed to prove the allegations, but worse: nobody seems to care. Nobody in the community, at least. This is either because they know or they benefited (or both). There’s nothing to be gained by continuing, and more to lose, at this point.

For the sake of posterity, I’ve collected select posts relating to these contentions at http://mspbwatch.net/category/ngo-accountability/. If you’d like access to any walled-off posts, let me know via my About page.

And take heart – accountability of these groups will continue, albeit in a different form, at the Fact Check page.

Cross-posted at mspbwatch.net.